Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Saturday, August 22, 2009

Public Safety Commission backs Driver Responsibility revamp

I must say, I've seldom been as pleased at being rejected as I was yesterday when the Texas Public Safety Commission formally voted to deny the Grits' peitition for rulemaking regarding creation of indigency, amnesty and incentive programs for the so-called "Driver Responsibility" fee. Instead the Commission voted to publish in the Texas Register new rules proposed by the Drivers License division that go a long way toward achieving our petition's goals.

DPS will soon propose its own version of an "Amnesty/Indigency Program" and an"Incentive Program" for the Driver Responsibility surcharge, which is a civil fee assessed on top of criminal fines and penalties that stretch out over three years. Drivers lose their license if they don't pay and there's no provision currently on the books for reducing fees. The new DPS rules would reorient the program so that it promotes drivers maintaining a license and insurance coverage instead of creating disincentives for compliance.

At the beginning of the day, right after I'd spoken to the Commission during the public comment period, Sen. Eliot Shapleigh addressed the panel, arriving with a staffer and Travis County Court-at-Law Judge Elizabeth Earle in tow. They showed the PSC data that 11% of drivers in El Paso and Austin had outstanding arrest warrants, largely as a result of high non-compliance rates in the Driver Responsibility program. Judge Earle told them surcharge-related cases were clogging up misdemeanor court dockets. Their presentation clearly made an impression, as commissioners referenced their remarks several times during their discusion of the proposed rules later in the day.

Indeed, I should mention that all of the commissioners present seemed quite engaged on the topic. Commissioner John Steen had actually called to speak with a rodeo clown from El Paso who was quoted in a recent newspaper article as having problems with surcharge. And Commissioner Barth on a different agenda item expressed reticence at revoking drivers licenses over petty fees because of problems they'd learned about with the DRP. (Instead of revoking drivers licenses for people whose checks bounce, she said at one point, a better solution would be to simply stop taking checks.) They've obviously been giving the issue a lot of thought.

I've not seen the formal rule language yet and it wasn't ready yesterday at the meeting: I was told all the i's hadn't been dotted and t's finally crossed, so the description that follows is from a Power Point presentation to the PSC, of which I was given a paper copy. According to that source and the description by Drivers License division chief Michael Kelley, here are the surcharge reductions proposed by DPS staff:

The Amnesty/Indigency Program only applies to two types of tickets. It will:

Reduce Point surcharge to a one-time fee of $50 if paid in full (reduced from $100 per year for three years)

Reduce No Driver License surcharge to a one-tme fee of $50 if paid in full (reduced form $100 per year for three years)

The Incentive Program covers the other offenses for which surcharges are assessed, the most common of which is failure to maintain liability insurance. For that offense, as well as Driving While License Invalid, here are the reduced surcharges under the new rule:

Reduce 1st No Insurance surcharge to a one-time fee of $50, to be paid in full with proof of insurance (reduced from $250 per year for three years)

Reduce subsequent No Insurance surcharge to $50 per year for three years, or $150 paid in full, with proof of insurance (reduced from $250 per year for three years)

Failure to maintain insurance for three years would result in the full surcharge being reassessed; this can be verified through Texas Sure.

Finally, the proposed Incentive program also applies to surcharges in DWI cases, but only in cases where offenders have completed a "Drug Court program." I'll confess to not understanding exactly what that means and look forward to seeing the formal rules to clarify. Perhaps they meant upon completion of a treatment program. While there are some specialized DWI courts in a few jurisdictions, most drug courts in Texas don't handle DWIs, which are misdemeanors on the first two offenses. Most drug offenses are felonies.

In any event, for people who completed a "Drug Court program," whatever that turns out to mean, first time DWI defendants can avoid a $1,000 per year, three-year fee by paying $500 one-time in full. Those with multiple DWIs or who had a BAC of 0.16 or higher willl see their surcharge reduced to $1,000 if they pay one-time in full, reduced from $1,500 to $2,000 per year over three years.

All these changes have something in common: They promote responsible behavior instead of impede it, encouraging drivers to maintain insurance and even participate in substance-abuse treatment while relieving an often-overwhelming financial burden. It's not what we'd asked for in the citizens' petition, but it's a thoughtful and bold approach to an entrenched problem that's in some ways an improvement over what we'd suggested. Kelley told the Commission the fiscal impact "should be a wash" because noncompliance rates were currently so high, but that the vendor would be able to track metrics to confirm that as the program rolled out.

Why the sudden shift in the agency's approach? Bottom line, DPS staff (rightly) believe the public is ignorant and confused about this program (a fact emphasized by a video shown by Sen. Shapleigh of a US soldier who lost his license while on duty overseas because of surcharges he didn't know about and couldn't afford). One DPS employee frustratedly told me they'd tried to get the Legislature to fund an education program to improve compliance since 2005, but couldn't get money to do it approved. So they've embraced the idea that it's better to get a one-time payment up front and gain leverage to ensure ongoing insurance coverage than to tolerate a 65% noncompliance rate that turns hundreds of thousands of people into illegal drivers.

The earliest the rules could be approved will be October, but they'll be retroactive to Sept 1, 2009 when they take effect. So that's fine going forward, but what about those already in the system caught in a "circle" of noncompliance, as the Kelley described it?

Thankfully, Commissioners Carin Barth, Tom Clowe and Chairman Allan Polunsky thought those folks needed to be included retroacitvely if it is legally possible. The General Counsel Stuart Platt said they'd been omitted because of unnamed "constitutional issues," but when Commissioner Barth pressed the point, mentioning that other "amnesty" programs were often retroactive, Platt told her they "can probably get around those" constitutional questions.

The commission ended up approving two motions: One of them directed staff to publish the proposed rules in the Texas Register and prepare for a public hearing. Another directed them to prepare a second rule that would make the same changes retroactively and publish it as well if the General Counsel thinks it passes constitutioanl muster. It was clear a majority on the Commission would very much like to make the changes retroactive if staff tells them that it's legally kosher.

The first of those motions by Commissioner Clowe also formally rejected Grits' petition, though it did so quite graciously, even thanking your correspondent by name, I was flattered to hear, for spurring the commission to take up the issue.

I want to thank the members of the Public Safety Commission in return, not to mention DPS Driver License division staff, for taking this issue on so diligently and thoughtfully when their General Counsel didn't belive it was legally required. (They've had authority to do this since 2007, he said, but he didn't believe they had to act now.)

Thanks also to everybody who helped work on the Grits petition. It had a significant effect even if the agency decided to go its own route on altering the program.

More on this next week when the rules are formally published and I have more details to share.

Congratulations, Scott. Wow, now I'm sorry that I didn't attend Friday's PSC meeting...I was stomping out other fires.

As you know I'm in kind of a funky posture about the DRP, because I deal with the Department and the Commission regularly, and the DRP really has no affect on my clientele except to increase opportunities for them to arrest people, but at the same time I have my own strong opinions about the DRP, which are substantially in tune with yours.

I applaud you for taking on the issue, and I'm honestly very impressed and very gratified by the Department's and the Commission's response to your initiative. I won't always agree with the new Colonel or the Commission, or approve of what they do, but I must say that we have a lot of very bright and thoughtful and very engaged people running the Department of Public Safety today. I am finding that officers at all ranks are showing a little more spring in their step as of late, and the same spirit prevails at Headquarters.

Grits did a good job publicizing this issue. There's also the fact that a bill passed requiring this agency to do something about the responsibility program, and there have been changes at DPS that probably went a long way in making this happen.

Thanks everybody for the kind words. But this is not over yet! I'm optimistic, for sure, and quite pleased by the meeting Friday, but there's many a slip twixt the cup and the lip. Until the rules are finally approved by the Commission, this thing's not done.

Anyone who wanted to contact the commission members, thank them for their work on the topic and encourage them to follow through on the new, proposed rules, that would certainly be helpful. :)

I want to congratulate you on your successful and persistent advocacy. You seem to be the only place on the web where I can find up-to-date and honest information on the DRP. I'm wondering how the potential rule re-write will affect people who are released from prison only to face the need to pay 3 years worth of accumulated DWI fines in one year, while they attempt to rebuild their life.

During the Sept. 17, 2009 Public Safety Commission meeting a motion was passed regarding DL division Asst. Director Kelley's proposal for the Amnesty/Indigency Program. A mandate also called for a public hearing and for this ruling to be published. Yet, I cannot find any notice of this.

Do you by chance know where or how to find more information concerning this issue? Thanks in advance for your help.

Southern, daily and good for you

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